Estelito Mendoza and the ghosts of his legacy

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When the dictator Ferdinand E. Marcos fled to Hawaii after the people power revolution, Estelito Mendoza fled the next day for Los Angeles. The dictator’s solicitor general and then-justice minister, Mendoza “agonized in temporary exile because he had nothing to be ashamed or guilty of,” read his biography, Forester of Nations and the Last Resort.

The announcement of Mendoza’s passing on Wednesday, March 26, was followed by a wave of conflicting sentiments. Defense Secretary Gilberto Teodoro called Mendoza “one of the country’s greatest lawyers,” he wrote on Instagram, whereas former communications undersecretary Manolo Quezon related his legacy to that of the dictator — “using the letter of the law in innovative ways utterly contrary to the spirit of the law,” he wrote on X.

A native of Pampanga, Mendoza was governor of the province, a solicitor general and a minister of justice at the same time during the dictatorship. That he is intelligent, and leaves behind an unmatched winning streak, are not in dispute.

“At the same time, every notable lawyer must also confront the judgment of history and be subjected to a terrifying inquiry: what were the moral consequences of the great things you’ve done?” Florin Hilbay, an Aquino-time solicitor general, wrote on Facebook.

A plunder defendant’s best asset

To the anti-corruption cause, Mendoza’s legacy would be making the crime of plunder harder to prove. Mendoza represented former president Gloria Macapagal Arroyo in the latter’s plunder case over the P365-million Philippine Charity Sweepstakes Office (PCSO) fund scam. Mendoza took that all the way to the Supreme Court (SC), and there, scored not only an acquittal for Arroyo but effectively created a new element of plunder — the identification of a main plunderer.

Because of this SC ruling, all other PCSO scam cases were obliterated, something that former ombudsman Conchita Carpio Morales once bewailed as “nipping the bud” of a great theft allegedly masterminded by the president. But for Mendoza, it’s Morales who’s “oppressive and cruel.”

The Supreme Court ruling of main plunderer impacted other high-stakes cases, such as that of Senator Jinggoy Estrada, who managed to secure bail while he was still facing his plunder charges in 2017. “Impunity now is institutional,” one source said then.

Of the three biggest pork barrel scam cases, it was the case of Senator Bong Revilla that first resulted in an acquittal, also thanks to Mendoza, who in 2017, was still strong enough to attend the trial at the Sandiganbayan. He already wore a hearing aid then, and a secretary needed to type court proceedings for him on an iPad in real-time so he could argue in court. But of the three, it was Juan Ponce Enrile who got out first, still thanks to a novel Mendoza argument to grant him humanitarian bail.

“For me, he was one of the best, if not the best, lawyers I have encountered and worked with,” Enrile, Marcos Jr.’s chief presidential legal counsel, said on Wednesday. Enrile’s humanitarian bail would later be used by the Sandiganbayan to ultimately approve bail too for former first lady Imelda Marcos, even though her absence during the reading of her guilty verdict for graft, some argued, would have been grounds to revoke post-conviction bail.

The ponente was the same for both the Arroyo acquittal and Enrile’s humanitarian bail — former chief justice Lucas Bersamin, who is now Marcos Jr.’s executive secretary. Altogether in Malacañang, they form an odd club of a former justice, a former defendant, and a dictator’s son.

While Mendoza did not join Marcos Jr.’s government, he was responsible for clearing the legal hurdles to the Marcos comeback in the Palace. Even though visibly frail, and once spotted in a sortie in a wheelchair, Mendoza won for Marcos Jr. the disqualification cases against him during the 2022 presidential campaign. (READ: Estelito Mendoza is lawyer for Bongbong Marcos in Comelec, ‘moves’ instantly felt)

‘Friend of the respondent’

Perhaps Mendoza’s most infamous contemporary case was the labor suit filed by retrenched flight attendants against his client, Philippine Airlines (PAL) owned by Lucio Tan. Tan himself faced cases of ill-gotten wealth as an alleged Marcos crony. In the PAL labor case, the retrenched workers had already won twice before two Supreme Court divisions, until Mendoza entered the picture and revived the case by sending a letter, regarded by dissenters as an irregular mode, to reopen a case.

In a stunning flip-flop, Mendoza got PAL a win in 2018 and ended the 20-year legal battle in favor of the corporation. Bersamin, again, was the ponente. Senior Associate Justice Marvic Leonen, one of the two dissenters in the 2018 decision, said that the ruling “creates an ominous cloud that will besmirch our legitimacy.”

In 2020, when the country’s cream-of-the-crop lawyers fought to declare as unconstitutional Rodrigo Duterte’s anti-terror law, Mendoza wrote the Supreme Court another “letter.” It was a petition to be allowed to act as an amicus curiae (friend of the court) in the constitutional case.

To be an amicus is to be an expert who would guide the Court in deciding the anti-terror law case, the biggest case in terms of the number of petitioners in recent history. Mendoza’s fellow University of the Philippines College of Law (UP Law) alumni were quick to oppose. Retired Supreme Court justices Antonio Carpio and Conchita Carpio Morales and their lawyers from UP, as petitioners, told the Supreme Court: “Attorney Mendoza is approaching not as a friend of the court, but a friend of the respondents.”

Having defended the dictator’s Martial Law, Mendoza “has never been on the side of the fence defending the constitutional rights of individuals,” Carpio and Morales said.

‘Courage to be disliked’

Back in the days of the dictatorship, the solicitor general Mendoza defended the government in a case they would again win, and what is now one of the most reviled decisions of the Supreme Court — the 1973 case Javellana vs Executive Secretary that upheld the railroaded 1973 Constitution. The 1973 Constitution enabled the abusive policies of Martial Law, a time that saw 70,000 people detained, 34,000 tortured, and 3,240 disappeared and presumed to be dead.

In 2020, the UP lawyers pleaded the Court that if they were to listen to Mendoza, “it might as well cost the judiciary more than what he or anyone else can afford to repay.”

To be portrayed as the dictator’s lawyer “and nothing more…is an irresponsible and unfair characterization,” said Mendoza’s biographers Adrian Cristobal and Francisco Tatad. Mendoza did not always defend the State; he once sided with the release of a Martial Law detainee in 1980, the writers pointed out.

Mendoza had “the courage to be disliked, about standing firm, about seeing the unseen — the details that others miss, the truths buried beneath the noise,” Margaret Raizza Andaman, a longtime associate of Mendoza before becoming alternative dispute resolution chief of the justice department last year, wrote on Facebook.

Andaman said Mendoza believed in the need “to appreciate the law as it is — not as we wish it to be.”

Quezon, however, said: “And so, for all he did, it still led to the grave: Estelito Mendoza has passed.” – Rappler.com